BILL C-2: AN ACT TO AMEND THE CRIMINAL CODE
(PROTECTION OF CHILDREN AND OTHER VULNERABLE PERSONS)
AND THE CANADA EVIDENCE ACT*

Introduced on 8 October 2004,(1)
Bill C-2 proposes amendments to the Criminal Code and the Canada
Evidence Act intended to “protect children and other vulnerable
persons from sexual exploitation, violence, abuse and neglect” and to
provide “testimonial aids for vulnerable victims.”(2)
Bill C-2 pursues those objectives through a three-fold approach. First, the
bill will expand the scope of some existing offences, narrow the availability
of statutory defences and/or increase penalties available following conviction.
Second, the bill proposes the creation of new offences relating to “voyeurism.”
Finally, Bill C-2 proposes a variety of procedural reforms intended to facilitate
testimony by young persons and broaden the courts’ ability to accommodate
the needs of children and other vulnerable witnesses in a variety of criminal
justice proceedings.

Bill C-2 constitutes the Government’s response to a
wide variety of recently articulated public concerns. For example, a 2001
resolution of provincial Ministers of Justice had urged the federal Minister
to raise the age at which a young person under 18, but over 14 years of age,
can validly consent to sexual activity with an adult. That and a number of
other issues affecting child victims were canvassed in a Consultation Paper
circulated by the Department of Justice in November 1999.(3)
Presumably as an alternative to raising the age of consent in all cases, Bill
C-2 expands the offence of “sexual exploitation.” At present,
section 153 of the Criminal Code makes it an offence for an adult
to engage in sexual activity with anyone over 14, but under 18, where the
adult is “in a position of trust or authority” towards the young
person, or where a “relationship of dependency” exists. Following
Bill C-2 amendments, an adult’s sexual contact with someone in that
age group will also constitute an offence where the relationship is “exploitative
of the young person.” The maximum available penalty is increased from
five to ten years’ imprisonment and minimum penalties are imposed.
At the same time, the maximum penalties for convictions under section 215
(failing to provide necessaries of life) and section 218 (abandoning a child)
are increased from two to five years. Bill C-2 also proposes amendments to
allow children and other vulnerable witnesses greater access to testimonial
aids, such as screens and closed-circuit television, and to eliminate the
need for a competency hearing prior to the admission of testimony from a child
under 14.

In the aftermath of the Supreme Court of Canada’s
broad interpretation of the “artistic merit” defence in child
pornography proceedings, Bill C-2 eliminates existing exemptions for material
with “artistic merit or an educational, scientific or medical purpose,”
leaving the statutory defence of a “legitimate purpose related to
the administration of justice or to science, medicine, education or art.”
Bill C-2 further specifies that the material in question must not pose an
undue risk of harm to persons under the age of 18. Amendments also broaden
the scope of the offence by eliminating the need to show that written materials
advocate or counsel illegal sexual activity with children. To satisfy the
definition of child pornography, it will be sufficient to establish that
the “dominant characteristic” of any written material is the
description, “for a sexual purpose,” of sexual activity involving
a person under 18 that would be an offence under the Criminal Code.
Bill C-2 also adds the offence of indecent exposure to a person under 14
to the list of those for which a sentencing court can make an order prohibiting
the offender from attending at public places ordinarily frequented by children
under 14, from seeking paid or volunteer employment that involves being
in a position of trust or authority towards persons of that age group, and
from communicating with them by computer.

In response to public concerns about the effect of technological
developments on personal privacy, the Department of Justice circulated a Consultation
Paper in 2002, seeking public input into the question of whether new criminal
offences were needed to deal with “voyeurism,” or the secret viewing
or recording of citizens, “for sexual purposes or where the viewing
or recording involves a serious breach of privacy.”(4)
The Consultation Paper noted that criminal prohibitions of that nature had
been suggested in a motion passed at the Uniform Law Conference in August
2000, and by a resolution passed in February 2002 by Provincial and Territorial
Ministers Responsible for Justice.(5)
In keeping with the recommendations of a majority of respondents to the Consultation
Paper, Bill C-2 proposes the creation of two new hybrid offences of voyeurism,
both of which incorporate a “public good” defence.(6)

The first paragraph of the Preamble provides a context
to Bill C-2 by noting Parliament’s “grave concerns regarding
the vulnerability of children to all forms of exploitation, including child
pornography, sexual exploitation, abuse and neglect.” The second paragraph
cites Canada’s obligations under the United Nations Convention on
the Rights of the Child and the Optional Protocol to the Convention, respecting
the sale of children, child prostitution, and child pornography. The third
paragraph articulates Parliament’s wish to facilitate criminal justice
system participation by children and other vulnerable witnesses, through
the use of protective measures that also respect the rights of accused persons.
Finally, the last paragraph identifies the need to respond to new technologies
that may facilitate sexual exploitation and breaches of privacy.

Clauses 2-5 broaden the scope of Criminal Code offences
involving sexual contact with persons under the age of 18 and/or increase
the penalties that may be imposed following conviction. Specifically, clause
3 amends sections 151 and 152 (sexual interference and invitation to sexual
touching of a victim under 14) to increase the maximum available jail term
from 6 to 18 months where the Crown proceeds summarily.(7)
The maximum penalty for conviction upon indictment remains unchanged at ten
years for either offence. A minimum sentence of 45 days’ imprisonment
will be imposed upon conviction for an indictable offence, and 14 days’
imprisonment for a summary offence conviction.

Clause 4 expands the application of section 153 (sexual
interference and invitation to sexual touching of a victim under 18), to
include anyone “who is in a relationship with a young person that
is exploitative of the young person.” At present, section 153 applies
only to persons in a position of trust or authority toward the young person,
or with whom the young person is in a relationship of dependency. Clause
4 also increases the maximum available penalty from five years to ten following
conviction upon indictment, and from 6 to 18 months where the Crown proceeds
summarily. In addition, minimum sentences of 45 days’ imprisonment
following conviction upon indictment and 14 days’ imprisonment upon
summary conviction are introduced. A judge may infer that a young
person is being exploited in a relationship from the nature and circumstances
of the relationship. Factors that a judge may consider include the age of
the young person, the age difference between the parties, the evolution
of their relationship, and the degree of control or influence exercised
over the young person.

In order to incorporate the concept of exploitative relationships
into the general consent provisions as they apply to sexual offences, clause
2 amends section 150.1 to further limit the availability of defences for accused
under 14, as well as those under 16 who are less than two years older than
the complainant (who is over 12 but under 14). At present, section 150.1 of
the Criminal Code effectively negates the ability of persons under
14 to consent to sexual activity, except with a partner who is under 16 and
less than two years older than the complainant, and is neither “in a
position of trust or authority towards the complainant” nor “a
person with whom the complainant is in a relationship of dependency.”
The new law removes the defence of consent where there exists a relationship
that is “exploitative” of the complainant.(8)

Clause 5 redrafts section 161 to expand the list of those
offences for which a sentencing court can prohibit a convicted offender from
attending at schools, playgrounds, day care centres, or other public places
ordinarily frequented by children under 14, from seeking paid or volunteer
employment that involves being in a position of trust or authority towards
persons of that age group, or from communicating with them by computer.(9)
Specifically, clause 5 adds the offence of indecent exposure involving a victim
under 14 (s. 173(2)), as well as a number of sexual offences that no longer
appear in the Criminal Code but have been altered or replaced by
subsequent amendments.

Clause 6 of Bill C-2 inserts a new offence of voyeurism
into Part V (Sexual Offences) of the Criminal Code. In keeping
with the previously mentioned public consultation document and responses
thereto, the new law targets voyeurism as both a sexual offence and a privacy
offence. For example, section 162(1)(c) makes it an offence to “surreptitiously”
observe or make a visual recording of a person “in circumstances that
give rise to a reasonable expectation of privacy,” where that is done
“for a sexual purpose.” In addition, proposed section 162(1)
makes the same surreptitious observation or recording an offence, if the
person being observed or recorded is: (a) in a place in which they can “reasonably
be expected” to be nude; to expose their genital organs, anal region
or breasts; or to be engaged in explicit sexual activity, or: (b) in such
a state or engaged in such activity and the observation or recording is
done for the purposes of seeing or recording it. As a result, voyeurism
could also be prosecuted as an offence against privacy, whether undertaken
for commercial profit, to harass the complainant, or for some other non-sexual
purpose.

Proposed section 162(2) defines the term “visual
recording,” while section 162(3) exempts police officers from the
application of the new privacy-related offence, when they are engaged in
judicially authorized surveillance. Proposed section 162(4) extends criminal
liability to anyone who “prints, copies, publishes, distributes, circulates,
sells, advertises or makes available” such a recording or has it in
his or her possession for such a purpose, knowing that it was “obtained
by the commission of an offence” under section 162(1). Section 162(5)
makes voyeurism a hybrid offence, punishable by up to five years’
imprisonment, when prosecuted by indictment, or up to 6 months following
summary conviction. Finally, sections 162(6) and (7) exempt liability for
acts that serve the “public good” and set out the limits of
that defence.

Clause 8 redrafts part of the French text and expands section
164(1) to add “voyeuristic recording” to the list of items for
which a judge may issue a warrant of seizure. Clause 8 also makes the necessary
consequential amendments to the remaining provisions of section 164 and
adds a definition of “voyeuristic recording” by reference to
section 162 that would contain the new offence of voyeurism as described
above. In addition, clause 8 amends section 164(4) to include voyeuristic
recording among the list of things for which a judge may make an order of
forfeiture for disposal as the Attorney General may direct.

Clause 9 amends section 164.1(1) to add voyeuristic recording
to the list of things for which a judge can order the custodian of a computer
system to produce an electronic copy, to render the material inaccessible,
and to provide the necessary information to identify and locate the person
who posted it.(10) Additional amendments
to section 164.1(5) add voyeuristic recording to the list of materials that
the court can order deleted from a computer system, if certain conditions
are met. Finally, clause 10 adds voyeurism to the list of offences in section
183 for which an authorization to intercept private communication can be sought.

At present, section 163.1 of the Criminal Code makes
it an offence to possess, access, make, print, publish, transmit, import,
export, distribute or sell child pornography.(11)
The maximum available punishment for accessing or possession alone is five
years’ imprisonment, where the Crown proceeds by indictment, or 6 months
following summary conviction. Making, printing, publishing, importing, distributing,
or selling child pornography, or possessing it for the purposes of doing any
of these things, is a hybrid offence carrying a maximum ten-year prison term
when prosecuted by indictment. Although the child pornography provisions of
the Criminal Code have withstood challenges under the Canadian
Charter of Rights and Freedoms, the Supreme Court of Canada’s interpretation
of the law in R. v. Sharpe and its subsequent application
by the British Columbia Supreme Court has been a source of concern for some.(12)
For example, the majority decision of the Supreme Court of Canada created
two exemptions to the ban on making or possessing child pornography, one of
which would include “any written material or visual representation created
by the accused alone, and held by the accused alone, exclusively for his or
her own personal use.”(13)
These exemptions were based at least in part on the Court’s finding
that the making or possession of such materials poses little or no risk of
harm to children. At the same time, the Supreme Court of Canada made clear
that these exemptions would not extend to the printing or publishing of child
pornography, or to possession for the purposes of publishing. The Court also
held that “artistic merit” should be interpreted as including
“any expression that may reasonably be viewed as art” and that
“[a]ny objectively established artistic value, however small”
would support the defence. Relying in part on the artistic merit defence,
Justice Shaw of the British Columbia Supreme Court found Mr. Sharpe not guilty
on some counts of possession of written child pornography and possession for
the purposes of distribution or sale.

In light of the reasoning and outcome in the Sharpe
case, it comes as no surprise that Bill C-2 proposes amendments to the child
pornography provisions that will broaden the application of the law and limit
the available defences to such a charge. First, clause 7 adds to the definition
of child pornography an audio recording that advocates or counsels sexual
activity with a person under the age of 18 years and that would be an offence
under the Criminal Code. Second, clause 7 redefines child pornography
by adding a second category of written material to section 163.1(1), “whose
dominant characteristic is the description, for a sexual purpose, of sexual
activity with a person under the age of eighteen years that would be an offence
under this Act.” As a result, written material will no longer have to
advocate or counsel illegal sexual activity with a person under 18 to fall
under the definition of child pornography.(14)
Clause 7 also adds to the definition of child pornography any audio recording
that has as its dominant characteristic the description, presentation or representation,
for a sexual purpose, of sexual activity with a person under the age of 18
years that would be an offence under the Criminal Code.

Clause 7 increases the punishments available for a summary
conviction for the child pornography offences to 18 months’ imprisonment
instead of the standard 6 months and introduces minimum sentences.
A new clause is to be added to specify that a court sentencing an offender
for a child pornography offence is to consider as an aggravating factor
the fact that the person committed the offence with intent to make a profit.
Clause 7 also replaces existing sections 163.1(6) and (7), to eliminate
defences for material having “artistic merit or an educational, scientific
or medical purpose.” It replaces these defences with one based upon
a “legitimate purpose related to the administration of justice or
to science, medicine, education or art.” In addition, it must be found
that the act alleged to constitute the offence must not pose an undue risk
of harm to persons under the age of 18 years.

As mentioned above, clause 11 amends section 215(3) to increase
the maximum available penalty for failing, “without lawful excuse,”
to provide “necessaries of life” for anyone to whom such a duty
is owed, including children under the age of 16 years.(15)
That penalty will rise from the existing maximum of two years’ imprisonment
to five years, when the Crown proceeds by indictment, and from 6 to 18 months
following summary conviction.

Similarly, clause 12 amends section 218 to replace the
existing penalty scheme for abandoning or exposing a child under 10, in
a manner likely to endanger his or her life or health, or risk permanent
injury. At present, child abandonment is a purely indictable offence with
a maximum penalty of two years’ imprisonment. Bill C-2 makes it a
hybrid offence, with a maximum penalty of five years’ imprisonment,
when the Crown proceeds by indictment, or 18 months following summary conviction.

Clause 24 adds to the “Purpose and Principles of
Sentencing” part of the Criminal Code by directing a court
to give primary consideration to the objectives of denunciation and deterrence
when it imposes a sentence for an offence that involved the abuse of a person
under the age of 18 years. Clause 25 broadens the sentencing provisions
in section 718.2(a) to deem, as an aggravating factor in sentencing, “evidence
that the offender, in committing the offence, abused a person under the
age of eighteen years.” At present, section 718.2(a)(ii) refers specifically
to abuse of the offender’s child. Finally, clause 1 of the bill would
amend section 127(1) of the Criminal Code to make disobeying a
lawful order of the courts a hybrid, rather than purely indictable, offence,
presumably to facilitate prosecution where a lesser penalty would be appropriate.

As previously noted, Bill C-2 contains several procedural
amendments intended to accommodate the needs of vulnerable complainants
and witnesses, particularly in the prosecution of sexual offences. For example,
clause 13 amends section 276.3 to make it an offence to “publish in
any document, or broadcast or transmit in any way,” the contents of
an application, or any evidence taken, at a hearing to determine the admissibility
of evidence respecting a complainant’s sexual history during the trial
of specified sexual offences. At present, section 276.3 simply prohibits
publication in a newspaper or in a broadcast. Clause 14 makes similar amendments
to section 278.9(1), concerning applications for the production of a complainant’s
personal records during the trial of a sexual offence. The new wording makes
clear that the prohibitions are intended to apply to all forms of electronic
dissemination, including Internet transmission.

The Criminal Code has long recognized that testifying
at a criminal proceeding may be even more stressful than usual for some
particularly vulnerable witnesses. In recognition of that fact, and in order
to ensure that the court will have access to the fullest and best possible
account of the evidence, section 486 has been amended several times, to
incorporate special rules of proceeding that are intended to facilitate
the hearing process by addressing the needs of these vulnerable witnesses.
Bill C-2 proposes amendments that will organize these special procedures
in a more rational way, while incorporating a number of incremental changes.
To accomplish this, clause 15 divides matters now dealt with in section
486 into seven new and separate sections.

New section 486(1) deals only with the reasons for which
a judge or justice can exclude “all or any members of the public from
the court room for all or part of the proceedings,” including where
he or she considers such an order to be in the interest of “the proper
administration of justice.” The major change to this provision would
define the “proper administration of justice” to include safeguarding
the interests of witnesses under 18 in all proceedings. At present, the
definition of the “proper administration of justice” refers
to the interests of witnesses under 18 in proceedings related to a sexual
offence or an offence in which violence was used, threatened, or attempted.
Thus, Bill C-2 would give the courts much broader authority to limit public
attendance when young persons are testifying, while continuing the same
option for the benefit of “justice system participants.”

New section 486.1 incorporates and amends existing provisions
that allow the courts to permit witnesses under 14, or those with a mental
or physical disability, to be accompanied by a support person while testifying.
At present, such authority is limited to proceedings respecting a sexual
offence or an offence in which violence was used, threatened, or attempted.
Section 486.1(1) extends the provision to include persons under 18 testifying
in any proceedings. Furthermore, a judge or justice will be required to
make such an order, where requested, unless he or she “is of the opinion
that the order would interfere with the proper administration of justice.”
Proposed section 486.1(2) extends the courts’ authority even further,
by allowing such an order for the benefit of a witness of any age in any
proceeding, if the judge or justice “is of the opinion that the order
is necessary to obtain a full and candid account from the witness of the
acts complained of.” In making that determination, the court would
be directed to take into account the age of the witness, the presence or
absence of mental or physical disability, the nature of the offence, the
nature of any relationship between the witness and the accused, and any
other circumstances considered relevant. Finally, proposed section 486.1(6)
specifies that no adverse inference may be drawn from the fact that an order
is, or is not, made under this section.

At present, section 486(2.1) allows the court, in the trial
of most sexual offences, to order that a witness who is under 18, or who
may have difficulty communicating evidence by reason of a mental or physical
disability, may testify from outside the courtroom or behind a screen, if
the judge or justice considers it “necessary to obtain a full and
candid account of the acts complained of.” New section 486.2(1) extends
the courts’ authority to make such an order for the benefit of such
witnesses during any proceedings and will require the court to make such
an order, where requested, unless the judge or justice “is of the
opinion that the order would interfere with the proper administration of
justice.” Furthermore, new section 486.2(2) allows such an order for
the benefit of any witness, if the judge or justice considers it “necessary
to obtain a full and candid account from the witness.” Once again,
the judge or justice would make that determination having regard to the
age of the witness, the presence or absence of mental or physical disability,
the nature of the offence, the nature of any relationship between the witness
and the accused, and any other circumstances considered relevant.

New section 486.3 enacts an amended version of existing
section 486(2.3) that now prohibits an accused from personally cross-examining
a witness under 18, in proceedings respecting a sexual offence or an offence
in which violence was used, threatened, or attempted. Again, amendments
in section 486.3(1) extend that prohibition to any proceedings in which
the witness is under 18, upon application by the prosecutor or witness,
unless the presiding judge or justice is of the opinion “that the
proper administration of justice requires the accused to personally conduct
the cross-examination.” The same presumptive protection is extended
to victims in criminal harassment proceedings by new section 486.3(4). In
addition, new section 486.3(2) allows the court to make such an order for
the benefit of any age witness, in any proceeding, upon application, if
the presiding judge or justice is of the opinion that “in order to
obtain a full and candid account from the witness,” the accused should
not personally conduct the cross examination. In making that determination,
the court is again directed to consider the age of the witness, the presence
or absence of mental or physical disability, the nature of the offence,
the nature of any relationship between the witness and the accused, and
any other circumstances considered relevant. No adverse inference is to
be drawn from the fact that counsel is, or is not, appointed under this
section.

New section 486.4(1) amends existing provisions that allow
the courts to prohibit the publication of identifying information about
a complainant or witnesses in proceedings relating to a list of mostly sexual
offences. The amendment adds section 162 (voyeurism), section 163.1 (child
pornography) and section 172.1 (luring a child) to the list of those offences
for which such an order can be made. In addition, new section 486.4(3) mandates
such an order for the benefit of a witness under 18, as well as any person
who is the subject of a representation, written material or a recording
that constitutes child pornography, in proceedings relating to such an offence.
As with previously described amendments, the new provisions make clear that
such information is not to be published, broadcast, or “transmitted”
in any way.

As is now possible under section 486(4.1), new section
486.5(1) retains the courts’ authority to prohibit the publication
of identifying information respecting a victim or witness in any proceeding,
upon application by a victim, witness, or the prosecutor, where the order
is “necessary for the proper administration of justice.” Similar
protection is continued under section 486.5(2) for the benefit of a “justice
system participant” involved in proceedings related to specifically
enumerated offences.

Finally, section 486.6(1) retains the existing punishment
for failure to comply with court orders issued under the authority of the
foregoing, and section 486.6(2) makes clear that publication bans also apply
to proceedings taken against anyone for failure to comply with such an order.

Clause 23 amends sections 715.1 and 715.2 of the Criminal
Code to expand the circumstances under which a victim or other witness
may be permitted to give evidence by way of a video recording, if it is
made within a reasonable time after the alleged offence and the victim or
witness adopts the contents of the recording, while testifying. At present,
that option is available only for witnesses testifying in proceedings relating
to an enumerated list of predominantly sexual offences who were under 18
at the time of the alleged offence (section 715.1), or who might have difficulty
communicating evidence because of a mental or physical disability (section
715.2). Amendments to section 715.1 make such a recording admissible in
any criminal proceeding where the victim or witness is under the age of
18, “unless the presiding judge or justice is of the opinion that
admission of the video recording in evidence would interfere with the proper
administration of justice.” Similarly, amendments to section 715.2
make such a recording admissible in any proceeding where a witness might
have difficulty communicating evidence because of a mental or physical disability.
The amendments also adopt new terminology by substituting “video recording”
for the existing reference to “videotape,” and “victim”
in the place of “complainant.”

Clause 26 amends section 16(1) of the Canada Evidence
Act to clarify that section 16 applies only to proposed witnesses who
are 14 years of age or over and whose mental capacity is being challenged.
In these circumstances, the court is required to conduct an inquiry into
the witness’ capacity to testify. At present, section 16 mandates
such an inquiry respecting any proposed witness under 14. Clause 27 will
add section 16.1 to the Canada Evidence Act to deal specifically
with persons under 14 years of age. This section will make clear that a
person under 14 years of age is presumed to have the capacity to testify.
Section 16.1 will also clarify that the new test for the receipt of a child’s
evidence is that the child is able to understand and respond to questions.
A child under the age of 14 will not be required to take an oath or make
a solemn declaration. Instead, a child will be required to promise to tell
the truth. No inquiry will be permitted into a child’s understanding
of the nature of such a promise, and the evidence given by the child shall
have the same effect as if it were taken under oath.

Clause 27.1 states that five years after Bill C-2
comes into force, it is to be reviewed by a committee of Parliament. This
committee is to submit a report on the review to Parliament, including any
recommended changes, within six months.

Clause 28 is aimed at coordinating the timing of Bill C-2
amendments with those contained in the Public Safety Act, 2002,
while clause 29 provides that Bill C-2 will come into force by order of
the Governor in Council.

When a predecessor to Bill C-2 was introduced, Bill C-20,
the Minister of Justice described the reforms, including the creation of
a new offence of voyeurism, as an important first step in fulfilling the
Minister’s “public commitment to ongoing review and reform of
the criminal law to ensure that it meets the concerns and needs of Canadians.”
The Minister further characterized the bill as responding to “key
commitments in the 2002 Speech From the Throne,” to protect children
from exploitation, to increase penalties for abuse and neglect, and to be
more sensitive to the needs of children participating in criminal justice
proceedings, either as victims or witnesses.

While few Canadians would find fault with these goals,
recent events and public response suggest a serious lack of consensus on
the best way to achieve them. For example, some police and parents argue
that nothing short of a ban on sexual contact between adults and youth under
16, or even 18, will protect young persons from sexual predators who may
attempt, for example, to lure them into prostitution. Others argue that
raising the legal age of consent would do nothing to address the more pressing
need to provide counselling and legitimate employment opportunities for
children already involved in the sex trade. Criticism was also directed
toward procedural amendments in Bill C-12, another of Bill C-2’s predecessors,
that some said could unfairly compromise the ability of an accused to conduct
his or her own defence.

In the aftermath of the British Columbia Supreme Court decision
in R. v. Sharpe, the Official Opposition called on the Government
to introduce legislation to raise the legal age of consent to “at least
sixteen” and to “prohibit the creation or use of sexually explicit
materials exploiting children or materials that appear to depict or describe
children engaged in sexual activity.”(16)
During debate on the motion, several members suggested that the “artistic
merit” defence should be subject to clearly defined limits, if not abolished.
Others specifically advocated expanding child pornography offences, to catch
“more than those materials that actively promote illegal acts with children.”
While it seems that Bill C-2 amendments have incorporated the latter two suggestions,
it remains to be seen whether law enforcement authorities, interest groups
and the public, generally, will find the bill sufficiently responsive to the
evolving needs of children and other vulnerable persons.

Some criticism of a predecessor to Bill C-2 was levelled
at the fact that the definition of child pornography would still include fictional
depictions of children engaged in sexual activity. This was seen as making
the bill vulnerable to a challenge under the Charter of Rights and Freedoms.(17)
The Canadian Conference of the Arts expressed fears that the proposed definition
of child pornography might infringe upon the freedom of expression of artists
in Canada. A similar concern was expressed by The Writers’ Union of
Canada and PEN Canada.(18) At hearings
before the Commons Justice Committee, representatives of arts groups attacked
Bill C-20, a predecessor to Bill C-2, saying that it could make criminals
of some artists and force them to show how their work serves the public good
– a term they called “vague” and “subjective.”(19)
It remains to be seen whether the replacement of the term “public good”
with “legitimate purpose” will adequately address these concerns.

Reaction to Bill C-2 has been mixed. Alberta Children’s
Services Minister Iris Evans was quoted as saying that the legislation is
a “good bill,” especially the sections that bar advertising of
child pornography and the sexual exploitation of children between the ages
of 14 and 18.(20) Staff Sergeant
Darren Eastcott of the Edmonton Police Service stated that the sexual exploitation
section is a real improvement.(21)
On the other hand, one criticism of Bill C-2 is that it is in danger of being
thrown out by the courts, as it places the onus on the possessor of child
pornography to demonstrate that he or she had the material for a “legitimate
purpose.”(22) There is also
some concern that free expression and legitimate artistic and professional
activities will be trampled by the bill.(23)It has been suggested that “child pornography” should
be redefined so that it targets only material that involved the unlawful abuse
of a real child. This would restore to educators, writers and artists a more
favourable climate for their freedom of expression.(24)

*
Notice: For clarity of exposition, the legislative proposals set out
in the bill described in this Legislative Summary are stated as if they
had already been adopted or were in force. It is important to note, however,
that bills may be amended during their consideration by the House of Commons
and Senate, and have no force or effect unless and until they are passed
by both Houses of Parliament, receive Royal Assent, and come into force.

(1) Bill C-2
is similar to Bill C-12 from the 37th Parliament. Bill C-12
died on the Order Paper at the dissolution of the 37th
Parliament in May 2004.

(6)Voyeurism
as a Criminal Offence: Summary of the Submissions, Department of
Justice, 28 October 2002.

(7)
At present, the maximum jail term following summary conviction is 6 months,
as provided under section 787 of the Criminal Code.

(8) Likewise,
clause 2 would remove existing barriers to the prosecution of persons
under 14, for certain sexual offences, if the accused is in a relationship
that is “exploitative of the complainant.”

(9) The option
to prohibit electronic communication with persons under 14 was enacted
in the 1st Session of the 37th Parliament: An
Act to Amend the Criminal Code and to Amend Other Acts, S.C. 2002,
c. 13, s. 4.

(10) That
authority was given to the courts in An Act to Amend the Criminal Code
and to Amend Other Acts, S.C. 2002, c. 13, s. 7.

(11) By contrast,
the possession of pornographic materials not involving children is not
an offence, although making, printing, publishing, distributing or circulating
such material may constitute an offence under section 163 if it is found
to be “obscene.”

(13) The second
exemption would apply to “any visual recording created by or depicting
the accused, provided it does not depict unlawful sexual activity and
is held by the accused exclusively for private use.” This was intended
to protect, for example, a teenage couple that together create sexually
explicit pictures of each other or both and retain them for their own
exclusively private use.

(14) In R.
v. Sharpe, [2002] B.C.J. No. 610, the B.C. Supreme Court found
that the impugned written descriptions did not advocate or counsel such
activity.

(15) Section
215(1) imposes the same obligation to provide necessaries of life to a
spouse or common-law partner, or to any person under an accused’s charge
who is “unable, by reason of detention, age, illness, mental disorder
or other cause, to withdraw himself or herself from that charge” and unable
to provide for himself or herself.